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National Review
National Review
20 Mar 2023
Rich Lowry


NextImg:Arrest and Counter-Arrest Is No Way to Run a Republic

NRPLUS MEMBER ARTICLE A lvin Bragg is ready to go there — to test what happens when a presidential candidate with an intense following, keenly attuned to potentially unfair treatment, is subjected to a nakedly political prosecution.

This is an experiment no reasonable person should want to undertake. It’s not that presidents and former presidents are above the law, but the old norm of forbearance is appropriate.

Adventurous prosecutions based on tenuous legal theories — which seems to be a spot-on description of Bragg’s case — are not worth the reputational risks to the law-enforcement system and the danger of setting off a cycle of arrests and counter-arrests of national politicians.

This is one reason why the Gerald Ford pardon of Richard Nixon, controversial at the time, came to be universally admired.

The dynamic of the impending Trump arrest is, of course, totally different and was nicely captured by right-wing influencer Jesse Kelly:

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The answer to the Left’s stretching the law to go after a hated figure shouldn’t be the Right doing the same, but is that argument easier or harder to make after Trump is arrested? Clearly, it’s harder.

Thanks, Alvin.

“Lock her up” wasn’t a great chant in 2016, but it was just a chant; you might have noticed, no one actually locked up Hillary.

As president, Trump inveighed against his political enemies and demanded that they be arrested. This was shameful and disturbing stuff, although, obviously, there were no arrests.

Alvin Bragg is doing what Trump fantasized about, and what the entire left-of-center universe characterized as an abuse of power when the Republican was merely musing about it.

The prospective Bragg prosecution is no different from what would happen if Sheriff Joe were still in office and somehow found a way to get an attenuated legal hook into Joe Biden. How would Democrats feel about that?

Arrests of presidential candidates and former presidents are inherently inflammatory — they involve humiliating a national political figure and potentially taking away his or her freedom. There is no way that the target’s supporters are going to just shrug it off, certainly not if the case is anything but momentous and legally compelling.

Arrests invite, as noted above, retaliation. An argument in favor of Bragg’s move against Trump is that Trump is unique, and uniquely vulnerable to legal charges. There is something to that, but both Bill and Hillary Clinton could have been prosecuted, and they weren’t. Same with Nixon. No Democrat should be sure that Biden isn’t implicated in the flow of sketchy money into his family, and we already know he violated the law in his handling of classified documents.

Finally, such arrests undermine faith in the law-enforcement system because they unnecessarily subject that system to the intense pressure of partisan politics at the highest levels.

All that said, it should be Trump’s responsibility not to inflame an already incendiary situation, but he is. That, though, was another foreseeable downside of following this route with this particular case.

Trump’s enemies never gave up on the idea that the “walls are closing in,” and they’ve decided, where they have the power, to make it a reality. Once again, they feel justified in violating norms in response to Trump’s threat to norms.

As I’ve noted before, a Bragg prosecution will help Trump in the GOP nomination fight, at least initially. If he’s fortunate in his enemies, the country is not.